Virtually no. Good afternoon, everyone. And I'm great.
Grateful that the discussion group has given me this opportunity to share my thoughts with you about.
Humanity, inclusive positivism and the law of armed conflict.
I will give you some background about this topic.
And then present the quest, driving questions, my hypotheses and a theoretical basis for my hypothesis.
And then a few words about how I delimit the incredibly.
Before launching into some substantial discussions and analysis of the material, and then finally I present my tentative conclusions.
This afternoon's topic is one of the two research themes that I recently began pursuing at the Swedish Defence University.
It initially arose in the context of my previous work on military necessity.
In a nutshell, it is often said that the law of armed conflict or lack.
Accounts or is it strikes meaningful and realistic compromise between military necessity and humanity,
and that therefore the law accounts for military necessity and humanity in the military necessity discourse.
It is then said that because the law of armed conflict accounts for military necessity, military necessity may not be invoked.
Denovo as a ground for justifying deviations from the unquantified rules of LOKKE.
Now, this is an uncontroversial position.
Also, the clay or the fact that military necessity may be invoked a vis a rule of law, OK,
if but only if that ruling question envisions military necessity, exceptions expressly.
And that's fine. But.
If that is the case with military necessity. Would we not be compelled to say the same thing about humanity?
It is often said that Locke strikes a balance between compromise between military necessity and humanity,
and therefore Locke accounts for military necessity and humanity.
Wouldn't it follow then that humanity may not be invoked?
Denovo would unqualified rules of law unless those rules themselves expressly and in advance envision humanity exceptions.
While this position may not be so, may not be so troubling when it comes to certain humanitarian desiderata,
it will be nice if you do this or if you do that.
But when compelling humanitarian imperatives are involved.
Should we or would be? Stand on this conclusion that humanity is excluded as a ground for justifying deviations from unqualified rules of law.
So there are two major situations when.
This becomes problematic. One is where she's managing.
Demands what law block prohibits. The law prohibits something, but humanity demands it.
The other situation is where she manages, condemns what Lobach permits.
What should one do when faced with such stock options?
So there are two questions to corresponding hypotheses and two corresponding theoretical bases that I would like to present today.
The first question is, does acting as directed by humanitarian imperatives restore its lawfulness under lock?
All things considered, even if the Lord's positive rules prohibit acting in such a way.
My hypothesis. Would be to say yes.
And there are two reasons to the extent that. Assess whatever you call I mean by it, either treat negotiations or through the formation of custom.
The.
Lawmaking process of law and cannot resolve in advance or actual or potential conflicts between the rules that the process would eventually posit and.
Contrary, she Manitoulin imperatives that may arise in the future.
This is the case with any legislative legislative activity you cannot foresee and
anticipate and account for such conflicts in the future for all circumstances.
No, that's now. If that is true and to that extent, then.
The humanitarian imperatives that. Escaped exclusion.
Through this process might act as a residual free floating layer of lawfulness determination over and above positive lock.
The theoretical foundation for the possibility that this hypothesis could be true is the necessity, thesis or action.
It's called an F necessity component of the incorporation of thesis, which is found in inclusive legal positivism.
I'll come back to this concept later in our discussion.
This is it's this necessity thesis or component that could explain why this hypothesis.
What I did, I called Humanitas Gebel. It might be true.
The second question. Then is.
As folks does, failing to act as directed by humanitarian imperatives impair its lawfulness under lock?
All things considered. Even if the Lord's positive rules authorise declining to cite a declining to act in such a way.
So if the law allows you not to act in accordance with as directed by humanitarian imperatives, does not act remain lawful?
Or does that become unlawful because it is contrary to humanitarian imperatives?
The hypothesis I have is. That it could be.
Could be made unlawful because humanitarian touch-ups demand condemn such acts for the same reason.
And to the same extent as the first hypothesis.
And for this, we might find a theoretical foundation in sufficiency faeces for the sufficiency component of inclusive,
legal, positive isms in cooperation with theses. And both the sufficiency and necessity for the components of this inclusive legal positives, Gizem,
evolve around how you construe the rule of recognition as it is understood in the harsh in and Neil Harsh and jurisprudence.
The scope of my enquiry is shaped by several considerations, and I enumerate them upfront.
My focus is on Law Act's ability to identify its.
Ultimate rules on its own. What I mean by that is that although it is accepted in the practise of international humanitarian
law EC that you may have recourse to rules coming from other adjacent fields of international law,
such as human rights law, refugee law, use a bit of an international criminal law and so on, so forth.
What I'm interested in is law X ability to identify its own content without having to rely on the assistance of other fields.
So whereas it is possible that most of the problems that I identify in my research
may be resolved for practical purposes by reference to such other areas.
That is not what I'm interested in. I'm interested in finding out whether Morlot can resolve its own problems.
And this also means that I would be hesitant to invoke metal rules like like specialities or use Cogan's.
In order to resolve the problems for Lolek, once again, I'm interested in Lileks own ability.
To find its own rules without aid from such techniques.
I am also making some potentially contentious assumptions.
One key assumption. Entails the distinction between what I call humanitarian imperatives.
From what I call humanitarian desiderata.
So it's one thing for humanity to say that it's it will be good if you did this or if it be, it will be regrettable if you did that.
That's one set of considerations. What I call the humanitarian desiderata.
Another set is what humanity would demand or condemn.
The distinction between these two types of considerations is in fact crucial in my discussion.
But it is not that self-evident that the distinction is viable, let alone easier to maintain.
I also may make the assumption that inclusive legal positivism is in fact useful,
can be can offer some useful insight when discussing bodies of material like law.
But once again. Then it would be interesting to ask whether inclusive legal positivism is useful in this fight at all.
But I'm not going to get into that discussion. I'm simply taking it for granted that this jurisprudential theory is relevant and useful.
And subsidiarity as a corollary to that assumption.
I'm also making this up, assuming that the rule of recognition.
Is the. I'm making an assumption that how humanitarian imperatives operate in the context
of lax lawmaking process and rule discovery are sufficiently analogous in conter.
An inclusive legal positivism is little of recognition here to humanitarian
politics and public morals are treated in my discretion as sufficiently analogous.
But that may be questionable if you reflect more on it.
So that was a long introduction and also.
Basically, a series of disclaimers before launching into the substantive discussion of the matter.
Now, let us try to do that. So by way of an overview for those who are not familiar with inclusive legal positivism.
There are a number of elementary concepts that I would like to run you, sir.
First. There is this thing called a rule of recognition.
According to in every legal system, according to.
Legal positivist. So.
Luna recognition is the widely accepted criteria set of criteria accepted by the system's low flying officials.
When those officials seek to identify what a valid rule on this, for that matter, it's.
And when we speak of law applying, well, officials in this context.
Most of the time, we have officials like judges in mind.
So the judges are presented with a case where two parties argue about the applicable rules.
Sometimes they are diametrically opposed about India, views about what rules apply.
So it is the judge's job to identify a rule that is to use a rule of recognition so that they can identify the valid rule in the legal system.
So it matters who the law applying or officials are in the discussion of legal positivism.
It also matters that whatever the rule of recognition may be, the officials would have to apply the rule of recognition more or less consistently.
There may be some disagreements about what the rule of a condition contacts amongst different law, outlying officials.
But there would have to be some degree of agreement amongst such low level officials as to what the rule of recognition is or contacts.
Now, according to one School of Legal Positivism.
It is possible, although not necessarily, that a rule of recognition may contain a criterion for the validity of a would be rule.
That that would be rule conform with moral norms.
So in other words, in this possible legal system,
whatever the parliament or the lawmaking body may legislate would have a final checklist that it has to jump.
That is, does this would be rule of law harmful with moral or moral norms?
If the answer is yes, it becomes law. If the answer is no.
However. That is in the rule of recognition.
Then the rule does not become law. And whether or not the law applying officials see this final criterion.
About the norms, conformity with morals.
This is what makes a rule of recognition.
If there is such a content in the recognition, this full of recognition reflects inclusive legal positivist ideals.
There are two variations on this inclusively positivistic rule of recognition.
One is the narrower or the middle, the less thick version of the two.
The so-called necessity component or the necessity thesis.
According to one legal philosopher, I'm going to quote this because then you will have a clear idea of what this necessity component is.
And I'm quoting now, There are conceptually possible legal systems in which it is a necessary condition for a known to be legally valid,
that its content be consistent with some set of moral norms.
Thus, the necessity component allowed morality to serve as a constraint on promulgated law.
It is not enough for it for a non to be valid that its component stands in the appropriate logical relation to the content of some moral norms.
That is it. For example, the rules are just the same matter as the moral rule, moral non us.
It has to conform with the content of the moral. That is a necessary condition for the rules that energy.
So it's essentially it's almost like, um, public morals had a veto on the lawmaking process of a legal system,
unless what's coming up is consistent with the moral rules.
That rule. What what comes up does not become law.
India. So that's the necessity thesis.
Moving on to the sufficiently sufficiency of cases, which is the fika version of an inclusive legal positivism.
I quote again. There are conceptually possible legal systems in which it is a sufficient condition for a norm to be legally valid,
that it reproduces the content of some moral principle that sufficient Seacombe component
allows then that well promulgated Norn might be legally valid in virtue of its moral content.
So on this view. What ever happens to be consistent with the moral imperative on the matter, on.
Become slow. Whatever the positive rules of the legal system may have to say it up about the matter.
And if you take it even further than now that it grew, which,
by virtue of its consistency with moral rules, would basically invalidate whatever is on the book.
It basically replaces an otherwise valid rule of positive law.
If that that rule of positive law is inconsistent with moral obligation, moral principles.
So it's a sweeping claim that whatever is morally sound or consistent with moral rules.
Basically it is law. So this is in a nutshell.
The contours of inclusive, more legal positivism and its necessity or sufficiency versions of it.
When we moved to the rule of recognition of the law of armed conflict.
For starters, who are locks law?
Well, officials.
We have international court officials, including judges, maybe prosecutors are kind of quasi, you know, applying all officials, we might say that.
But the judges at the international courts, including international criminal tribunals,
would be quite problematically low lying officials whose job it will be to identify low.
Little recognition. I would including this list also.
State organs, especially those who speak on behalf of a state.
Diplomatic conferences or other such appropriate occasions.
If their statement were to counter state practise or open your uterus or both, as the case may be.
I would also add, although somewhat more controversially, writers of official like manuals issued by states.
And also perhaps intergovernmental fact finders,
especially those commission mandated by the Human Human Rights Council or the General Assembly into events like Georgia,
where people dodes fact finders would apply what they consider to be divided rules of law.
In this movie, The Facts on the Ground. And last but not least, although not uncontroversially, perhaps also ICRC officials,
the officials of the International Committee of the Red Cross because of the committee's special status under the law.
And how consistent?
So if those to the extent that those not or officials of LORAC can identify apply a rule of recognition in their efforts to discover rules,
how consistent would the rule of recognition accepted amongst them have to be?
One problem here is that this is primarily a matter of opportunity when rules are uncontroversial, like police, for example, the content.
Most of the contents of the four Geneva Conventions.
We wouldn't really need to go through an elaborate process of rule of recognition in order to find out what the rules are.
You just go to the Geneva Conventions and find it in them.
So there are opportunities on opportunities may not.
Right, so ready where we can observe the kind of rule of recognition that the law of fish law planning officials use in law.
Another hurdle here about the consistency of Law Act's rule.
Luder recognition is to what extent? Can we say that it is consistently applied by those various local planning officials?
These this is a question that remains quite open and contentious.
I accept the. Then let me try to formulate for the purposes of examining material, what the necessity driven rule of recognition.
Might look like for the law of armed conflict. Such that my first hypothesis, that is humanity, that's Gebel might well be true.
So here is a formulation I came up with. A norm becomes a valid rule of law if, but only if.
And only to the extent it is not inconsistent with humanitarian imperatives.
So that will be the content of a would be LORAC rule of recognition, which exhibits the necessity for these.
Similarly, I tried to formulate the law, no ex would.
The sufficiency of Jesus such that my second hypothesis would be true.
So it would look like this. A normal becomes a valid rule of law, OK,
if it is as directed by humanitarian imperatives and as a consequence it invalidates whatever rule law otherwise contains.
That is inconsistent with it. So.
Do we have such a rule of recognition? Let's start with the necessity version of inclusive legal positivism as applied to law.
There are several representative instances where this kind of concentration becomes material.
The first one is.
The question of whether to whether to repatriate or declined to repatriate prisoners of war against their will after the succession of our citizens.
Here, the Unfortified Law Act rule in question is Article one.
Eighteen of the third Geneva Conventions. The first paragraph which I read.
Now. Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities, end quote.
There is no codifying, there is no quantifier to this, Rick.
Yes, it's true. In other words, the detaining power must release and repatriate all of its pure WS after the cessation of hostilities.
With what kind of normatively a not a human type imperatives or imperative or imperatives would disprove conflict?
Well. The humanitarian imperative might be that people ws or not to be repatriated against their will.
When the circumstances are such that they fear prosecution, for example, back home, that Pyo WS or not to be repatriated.
In fact, this was a problem from the Korean War onwards.
That is even before the Geneva Conventions were, in fact adopted in 1949.
That's some detaining powers declined to repatriate people that is in their custody against their will to places like North Korea,
China and the Soviet Union. So.
On its face, at least. Such practises are in breach of the unqualified requirements of Article 118 of the third Geneva Convention.
Under north circumstances will appeal with the detaining party entitled to declined to repatriate its products.
So. If we were not to rely on the other fields of international law, such as human rights law or refugees.
Especially with the emergence of normal Philmont as as a as sort of a counterpoint,
then how would not be able to explain that decline to repatriate Pyo WS against their will?
Although on its face, contrary to the letters of the literal Article 118, the third Geneva Convention is in fact not unlawful.
We would want like to be able to say that, wouldn't we? So the one solution would be to say this.
The mere fact, the mere fact that a positive light rule in this in the shape of Article 118 unqualifiedly obligates post hostilities,
P or W repatriation, all of them may not have resolved potential non conflicts with contrary humanitarian imperatives or demands.
For example, do not repatriate pure WS against their will.
Then it is not clear whether the unquantified ness, if you will, of Article 119.
In relation to such imperatives was in 1949 when it was adopted or has since been really conclusive for Locke on the matter.
Perhaps despite its categorical language, Article one, it cannot be said to have extinguished that element of humanity,
that which demands normally patriation underserve under understands under certain circumstances.
In 1949, Pete. When people gather in Geneva and wrote Article 118, they could not have accounted for and extinguished for posterity.
All situations in which such genuine conflicts between the rule they are promulgating and the humanitarian imperative,
such as do not repatriate Puel WS against their will and resolve them in advance.
So this is something that a legal system cannot do this.
We know so. Wouldn't it be more appropriate if we accepted a rule of recognition according to which conformity
with humanitarian imperatives is in fact a condition before something can become a very rule of law?
There are simit on certain examples, especially in this, in relation to the treatment of peeled onions.
So one unqualified rule. States, it's Article 22 of the third Geneva Convention that prisoners of war may be in done only in premises located on the.
So they must all be in terms of online without any exception.
What? That's what the text says. But this may conflict with humanitarian imperatives when the circumstances are right,
that appeal ws all to be interned not on land, but on, for example, aboard a naval vessel at sea.
And this actually happened during the Falklands Malvinas conflict in the 80s where the British
authorities decided to intone Argentinian Build-Up with is aboard British naval vessels.
Rather than having to bring their people ws thousands and thousands of miles away.
On some facilities or not, because Falkland is a rather remote set of islands.
It would have the British decided in consultation with the ICC that it is more expedient and not contrary to humanitarian considerations,
the well-being of its appeal ws that they be time aboard a naval vessel instead.
He had to. Because in 1949, when delegates draughted wrote Article 22 of the third Geneva Convention,
the delegates could not have anticipated and accounted for and excluded.
Such genuine conflicts that might arise between Article 22, the unqualified,
apparently unqualified content of Article 22 on the one hand, and contrary humanitarian demands imperatives on the other.
So it will be more appropriate. Wouldn't it be more appropriate if we supposed that in law X rule of recognition,
there is a final layer in the validity criterion that says that the rule must
conform with humanitarian imperatives before he becomes a very rule of law?
There is another now, two more. Examples.
I would not be as an operating discussion of just two examples.
What is? The the so-called humanitarian occupation debate.
So in a prolonged occupation regime, wouldn't Cyprus and Palestine?
There are rules of Lobach, both from coming from the 19 or seven Hague regulations and also from the Fourth Geneva Convention of 1949,
according to which the occupying power may not alter the law.
The local law implicates. And there are some exceptions allowed under the fourth Geneva Conventions, but humanitarian needs?
Well, the humanitarian imperatives are not one of them, not amongst such exceptions.
But the argument goes, well, if you occupy a piece of territory for half a century.
And in the meantime, international human rights law have has evolved and the occupying power would be duty bound
to strengthen respect for human rights for the residents of the territory you occupy.
In line with the evolution of society, basically. So will there be a conflict between the.
Absolute near absolute obligation to preserve local law, especially penal law in place.
Overall, Occupy territories on the one hand,
and the humanitarian imperative to strengthen respect for human rights in occupied territory on the other.
So the argument is that.
When there are such when such compelling humanitarian imperatives demands improving the conditions of well-being in occupied territory,
the law and rules that says that the lower rule that requires the preservation of local law should not be read to mean.
Under no circumstances may you change the law. The last example I used I want to mention is two.
Basically, this is a very uncomfortable situation where on the one hand, you have a.
A category, an unqualified obligation.
For the evacuees of dangerous, endangered locations, let's say, for example, there is an ethnic cleansing going on.
And she made Italian organisations have no choice but to evacuate endangered residents of that area.
There are some rules that allow. Residents on humanitarian grounds.
But then they must all be returned to their prior location, a place of residence after the cessation of hostilities in that area.
That obligation to return is unquantified. However, we know from history that in places like Bosnia Herzegovina and in the Great Lakes and elsewhere.
Forces returning residents to their prior place of living may endanger.
So it would have to be forced essentially to. Will you be effectively assisting in the commission of ethnic cleansing?
In other words, sending these people into long term or permanent displacement?
Now, I understand that there is an interesting argument coming up to the effect that those humanitarians who find themselves aiding and abetting,
shall we say, in ethnic cleansing for on grounds of the residents personal security.
Might be justified under some sort of a justification, necessity, defence.
That is their criminal defence of just typical rudeness. Just difficult arenas.
People's defence. Thereby you will be justified in doing something that would otherwise be unlawful and criminal.
Very briefly, although pertinently on examples that would or might point to the existence of the validity of the second hypothesis I have.
In other words, would there be a rule of recognition in law according to which conformity with.
Humanitarian imperatives is sufficient for the norm to become a but it rule of law, OK, whatever Lola would otherwise have to say about it.
There is an ongoing uncertainty about whether it is unlawful,
it is lawful or unlawful to resort to religion and trials against civilians in authorities under customary law.
We know that it is prohibited under additional protocol one. But outside of additional protocol one, there was there is still uncertainty,
a degree of uncertainty about whether it is now unlawful or it is still lawful.
Of course, we have also cases coming out of the ICU, T.Y. mortage, a Rule 61 decision and a briskets trial judgement.
Notably that purport to declare that villager reprisals are against civilians in hostilities is unlawful under customary law.
That there is, of course, a counter argument coming from the British manual of law.
And also, even the ICRC custommade or study that was written in 2005 seemed to accept that the law is not quite settled on the matter.
Here, the contrast is between if we accept that she met, bitter reprisals remain lawful under customary IJA.
That is against civilians in hostilities. Despite its evident inhumanity and if humanity, if humanity condense such reprisals.
What how how would Locke solve the country views on this matter?
Now, if my hypothesis is true. Because humanitarian condemnations of belligerent reprisals is what humanity?
What is the content of the humanitarian imperative?
Saying that it is prohibited. It's consistent with the imperative.
Therefore. Are therefore a norm, according to which it isn't reprisals against civilians also it is under customary law,
is no longer permitted, becomes the rule of law.
If my hypothesis is true.
Similarly, there is an ongoing debate between about whether force protection is lawful, even if it endangers civilian protection.
The Majo, the group, a substantial group of like experts,
seem to accept that force protection is a legitimate and lawful concern for the for the armed forces.
So the belligerents are not there while they are obligated to accept some degree of risks or in self endangerment in favour of civilian protection.
There is a special beyond which the diligence could not be duty bound to accept it.
But those who favour civilian protection would say that no, because humanitarian imperatives condemn.
Unduly endangering civilian populations. Not doing that amounts to acting in breach of law.
In other words. Providing maximum civilian protection is what humanity demands, and that becomes the rule of law.
If you accept the sufficiency of this and so on and so forth and so forth.
Now, you may have noticed that I was.
Much less ambiguous. Discussing the necessity thesis.
So the repatriation or non repatriation of people WS interring peeled out is on land or at sea and so on.
I was I found myself arguing that, yes,
these are sufficiently clear cases where conformity with humanitarian imperatives is a condition for a norm to become and that it will look.
Whereas when I moved to the second hypothesis of the necessity thesis, it's much less clear cut.
It's one argument that says it will be isch or it should be considered unlawful to resort to
military reprisals against civilians in hostilities because it is so impermissibly inhumane.
But the debate continues.
It is not as if the weight of authority has decided decisively shifted towards accepting that as the final legal tradition of law.
What does all that sit about? The strength of my hypothesis.
I am tentatively of the view that what I called Shamone cuts give kibbled.
That is. There is a rule of recognition in law according to which conformity with humanitarian imperatives is a condition.
A necessary condition for a known to become a valid rule of law is on a somewhat firmer ground than the sufficiency thesis.
That is whether there is a rule of recognition in law to the effect that conformity with moral impaired,
the humanitarian imperatives, is sufficient for a norm to become a very rule of law.
Whatever luck would otherwise have to say about the matter. This one seems to be on much less ground, at least as far as the evidence is concerned.
In fact. A similar type of enquiry might be undertaken not just into the role of humanitarian imperatives.
This would be like lawmaking, an think rule, discovery.
But for example, imperatives of shelach, whether chivalrous imperatives would play any such constraining role or substitutive role in not lawmaking.
Or look, rule discovery, at least as the logical normative structure of the enquiry would be exactly the same.
But of course, I have not had time to undertake that enquiry quite, quite yet.
So maybe that's something I do know before I retire from the Swedish Defence University, if I have time left.
Now. This is all to say that I am still very much in brainstorming phase of this research.
And I would by way of concluding, I would very much invite.
Your thoughts and comments and questions about the content or the structure of
my thinking so far so that I might refine my research activities in the future.
Thank you very much for.